I am a professor at Santa Clara University School of Law, where I teach and write about Internet Law, Intellectual Property and Advertising Law. Before I became a full-time professor in 2002, I practiced technology law in the Silicon Valley from 1994-2002. I've been blogging at the Technology & Marketing Law Blog since 2005 (http://blog.ericgoldman.org).

Last week, Electronic Arts ($EA) sued Zynga ($ZNGA) for copyright infringement because Zynga’s “The Ville” game allegedly takes too much of EA’s “Sims Social” game. Lawsuits like these are rare in the games industry, for good reason. Imitation of other manufacturers’ games is standard in the industry, and every major industry player does it frequently. As my peer Prof. James Grimmelmann wrote, “the [games] industry has developed a dysfunctional culture of copycattery.” Bringing a lawsuit that redefines the industry’s practices about games imitation could lead to a counterproductive outcome. Even if EA wins this lawsuit (which I doubt), the resulting legal precedent could give more powerful tools to future plaintiffs suing EA for imitating their games. Because everyone in the industry lives in a glass house, the major industry participants (wisely) choose not to throw stones.

To win this lawsuit, EA will have to overcome some complicated aspects of copyright law. EA can’t win simply by claiming that Zynga copied its basic game concept and that Zynga’s in-game window dressing is substantially similar to EA’s. Under copyright law, everyone is free to copy the basic game concept. And, per its standard practices, Zynga carefully changed many details in its execution of the game concept. EA is mostly complaining that Zynga didn’t go far enough in making changes to those details, and its complaint does provide some examples where Zynga didn’t appear to deviate very much from EA’s precedent. But finding a few minor identical details, especially when the game concepts are identical (as they are legally entitled to be), doesn’t make for a very strong complaint. (In this respect, I may disagree with my peer Prof. Greg Lastowka, who appears to have a more favorable gloss on EA’s legal position).

Pushing the frontiers of copyright law is what makes the lawsuit so dangerous to EA. EA will need to make aggressive arguments about copyright law to fit the legal doctrines to its facts. It will either have to seek protection for its game concept–a losing proposition under copyright law. Worse, if EA does make progress on that front, the new legal precedent would substantially undermine the current industry-standard practices about imitation and throw the games industry into a tailspin. More likely, EA will argue that Zynga needed to change its execution even more if it wanted to avoid infringement. But for EA, winning this legal argument would implicitly mean that EA will have to do more development work next time it wants to imitate someone else’s game. So EA’s desired baseline practices for Zynga will, when applied to EA in future lawsuits, likely jack up EA’s development costs in the future as well.

Undoubtedly, this is a lawsuit that Zynga can’t afford to lose. Zynga has built its business on imitating other people’s games, and any adverse ruling about that practice could harm Zynga’s business substantially. But EA is threatening to destabilize the current industry détente about game imitation, and any resulting litigation chaos could end up eroding EA’s profits. Further, if EA redefines the legal standards for game imitation to make imitation more risky, then it’s just sharpening the knives of future copyright owners seeking to carve it up. Thus, I see this as a lawsuit that EA can’t afford to win.

Given that neither Zynga nor EA will want to see this case result in a definitive legal precedent, this case will almost certainly settle. The most likely outcome is that Zynga will make some minor and low-cost changes to its game that placate EA, thus allowing EA to claim victory while still preserving Zynga’s basic implementation. Thus, the big-picture legal questions about the legitimacy and boundaries of game imitation are almost certainly not going to be resolved here.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Comments

And you can’t list even one single game that EA has copied to create one of their own?

I’m not defending EA, and they’re definitely guilty of some things, but having spent the last 33 years of my 36 year life playing video games, I can expertly say that EA has not copied a game created by someone else in the way that Zynga has ripped off nearly every other developer.

Did you start to research the article and got it finished by the time you realized that EA hasn’t copied any games in the way that Zynga has? Since you obvoiusly have not researched the premise for your article, at all, Paul, here ya go:

http://en.wikipedia.org/wiki/List_of_Electronic_Arts_games

Find a game on that list that EA copied from someone else, please. Get started soon, there’s only a few hundred on that list, and I’m sure it’s not 100% complete either. With as many games as EA puts out each year, it should be easy for you to find evidence of their plagiarism.

The funny thing is that SWTOR failed miserably, just how bad is EA at executing, even if they were copying stuff. EA’s intentions are very clear here. On PC side ATVI and social side ZNGA, either way EA is getting beaten down. Since, evidently ATVI is a bigger playing suing them would be disastrous to EA by all means. So, who’s left? ZNGA. As Eric has rightly pointed out, filing this lawsuit shows how incapable EA it compete with their competitors. “If you cant beat them sue them” Like oracle sued Google on android.

How about Mass Effect 2 and 3 basically becoming Gears of War clones with some RPG elements? Same goes for Dead Space 3, which doesn’t even look like a horror game any more.

Or Battlefield 3 releasing a map pack that essentially turns the game into Call of Duty? Not to mention the single-player campaign that was totally unnecessary, unwanted, and really just Modern Warfare without the fun set-pieces.

Or Medal of Honor, which has also morphed into a pathetic Call of Duty clone.

Then there’s The Old Republic, or as it’s commonly referred to, WoW with Star Wars skins.

How about Crysis 2 and how it removed all of the open-world aspects that made the original Crysis and the first Far Cry so unique and turned it into another boring, set-piece driven linear shooter with a silent protagonist and a bad story? That ring any bells?

Should I go on?

EA is in the business of ripping off the game designs from other companies. That’s what they do. You can see it in all of their major franchises these days. Rather than create, they prefer to emulate and hope to leech off the success.

The first Dead Space was awesome and unique. The second one was a lame action game. The third just looks like Gears of War. That’s the EA cycle in a nut-shell.

Mass Effect has always been a third person shooter, and always used a cover mechanic. Similarities to Gears of War outside of the very basic mechanics end there, the rest is cynical and disingenuous assertion. Dead Space 3 has two different modes of play, the “not survival-horror” bits you speak of are for co-op only, as Visceral has already gone on record to say that the co-op experience is different from single player.

People have been releasing map packs for games for ages. I don’t see how releasing one turns Battlefield 3 into Call of Duty. Map Packs don’t change game mechanics. Also, complaining about the single-player campaign does NOTHING for your copycat argument, it just shows that you did not like the single player campaign.

Medal of Honor predates Call of Duty by nearly five years in establishment, and both games have followed similar design credentials since then. It would actually be more fair to say Call of Duty is just a more successful version of Medal of Honor.

I’ve never heard SWTOR ever called “WoW with Star Wars Skins” so I’d like to see how common that really is. MMOs have a very bad time differentiating themselves due to financial pressure to succeed, but I’ve never played SWTOR so I can’t comment on that one.

Your dislike of Crysis 2 doesn’t mention anything about being a copycat game, just that it doesn’t have the open-world element that you like. Also, I find it interesting that you mention the Modern Warfare set-pieces were fun, but the moment you get on about them here, they’re part of boring game design.

So yes, please, go on. Because you did a terrible job at making your point.

“if EA does make progress on that front, the new legal precedent would substantially undermine the current industry-standard practices about imitation and throw the games industry into a tailspin.”

I’m pretty sure that is exactly what EA has to gain from this, they are one of the oldest players still alive today and have a huge assortment of IPs and game concepts since the early 80s in their library. There aren’t many other publishers (or companies) out there that could compare to the amount or breadth of titles EA has released and if they can argue that certain “sub-genres” or even game concepts they did first cannot be copied they stand to win much more than they could lose. Don’t forget this is the company that has (effectively) tried to lock down the sports game market for years so they remain the only player.